their homestead. The said Rosalie executed a will, and, omitting notice of a bequest which is immaterial, she thereby devised the real estate to Franklin Fearing in trust, with directions to sell the same and pay the proceeds in equal portions to two of her grandchildren. The plaintiff is guardian of said children.

Rosalie Campbell died in 1875, and William P. Campbell continued to occupy said premises until June 15, 1878, when he died. Sometime previous to his death said William P. elected to take his distributive share in said real estate in lieu of his right to occupy the same as his homestead during his life. Upon his application the circuit court, in June, 1877, ordered "that the dower or interest of W. P. Campbell be admeasured," and appointed referees to set the same apart.

In March, 1878, the referees reported that the premises were not susceptible of division, and thereupon the court ordered the referees to proceed and sell the same, and pay one-third of the proceeds to said Campbell, and directed them to report to the court "their acts and doings touching the sale of said property, and the disposition of the proceeds thereof." Nothing was done under this order during the life-time of said Campbell, but after his death, the referees being about to sell said real estate, this action was brought to restrain the sale, and to set aside the order of the court adjudging that said Campbell was entitled to a distributive share thereof. The administrator of said Campbell intervened, and alleged there were certain debts of the estate which had been allowed, and which should be paid, and that there was no property belonging to said estate except the interest in the real estate aforesaid. The intervenor asked that the injunction be dissolved and the referees allowed to proceed with the case. In substance, the relief asked by the plaintiff was granted, but the court ordered that certain costs incurred in the proceeding to admeasure the dower or distributive share of said Campbell should constitute a charge upon the real estate.

1. It is not regarded as material whether the real estate, as such, was devised to said children, or only the proceeds thereof, and, therefore, it should be held to be a devise of personal property only; for the legal title under the will either vested in them, or in said Fearing in trust, for their benefit, and if the latter be true we think the plaintiff could well invoke the action of the court to protect and enforce the trust.

2. The petition avers that said William P. "continued to occupy the premises as his homestead up to the time of his death." Because not denied, this allegation must be deemed true. The surviving husband or wife may continue to occupy the homestead until otherwise disposed of by law. Upon the death of the survivor the homestead descends to the issue of such survivor, unless it has been otherwise disposed of by will, exempt from any antecedent debts of their parents or their own. Code, §§ 2007-2008. It being true that William P. Campbell continued to occupy the premises as his homestead until his death, it is difficult to see how it can be made liable to the payment of his debts. But it is unnecessary to base the decision alone on such thought. Section 2008 of the Code further provides that "the setting off of the distributive share of the husband or wife in the real estate of the deceased shall be * * a disposal of the home

stead."

The meaning and intent of the statute is that when the distributive share is "set off" the homestead right becomes extinct. But the mere election is not sufficient, nor does it matter how far the proceedings may have progressed, short of the final order "setting off" the distributive share. Until such order has been entered the right to occupy the premises as a homestead continues, and the said Campbell having died in possession the real estate, in the absence of a will, would have descended to his issue exempt from his debts. But as there was a will, the estate descended to the wards of the plaintiff or to Franklin Fearing in trust for them. The circuit court therefore rightly, we think, restrained the sale of the premises. Affirmed.

'OLE LARSON and others, Appellants, vs. H. O. DAYTON and others, Appellees.

Filed December 10, 1879.

Corporate articles provided that the private property of the members of the corporation should not be holden for its liabilities beyond the amount of their subscription. Some of the stockholders signed certain notes for the purpose of raising additional capital for corporation purposes. Held, that the fact that such parties signed said notes at the request of other stockholders would not make such other stockholders to any extent liable, there being no other promise or undertaking of indemnity.-[ED. Appeal from Allamakee district court.

It is averred in the petition that, on the twenty-first day of January, 1865, the Village Creek Wool Manufacturing Com

pany was duly organized under the laws of this state, and that the plaintiffs and defendants were stockholders of said. corporation; that said corporation issued 40 shares of stock, of $500 each; that on the twenty-fifth day of February, 1867, said corporation, by its president, H. O. Dayton, executed and delivered to Edward Brownell its promissory note for $400, payable in twelve months, and, at the request of the stockholders, the plaintiff Ole Larson became surety thereon, and was obliged to pay thereon the sum of $378; that at the date of the execution of said note the defendants were stockholders of said corporation. It is further averred that other notes of said corporation, to other parties, were signed by other of the plaintiffs as sureties, and that such signatures were made at the request of the stockholders, and that plaintiffs have been compelled to pay off and discharge said notes. All of the notes are particularly described in separate paragraphs of the petition.

In an amendment to the petition it is averred that the sureties signing said notes were at the time stockholders in said corporation; "that they signed said notes for the purpose of raising additional capital for said corporation, and for the mutual benefit of all the stockholders thereof; and that all of said notes were signed as aforesaid with the full knowledge, approbation, assent, and at the request of said stockholders. The articles of incorporation of said company were exhibited with and made a part of the petition. The object of the action is to compel the members of the corporation to contribute their proportion of what the plaintiffs have been compelled to pay.

The defendants, by their answer, in addition to a general denial of the allegations of the petition, denied that they were in any manner liable to the action of the plaintiffs, or responsible to the creditors of said corporation. Upon these issues the cause was referred to a referee, who upon a full hearing found that the plaintiffs were not entitled to recover. A motion was made to set aside the report of the referee, which was overruled, and a judgment was rendered in accord therewith. Plaintiffs appeal.

John T. Clarke & Co., for appellants.

Dayton & Dayton and L. E. Fellows, for appellee.

ROTHROCK. J. 1. The petition was filed on the second day of June, 1873. A motion has been filed by appellee to affirm the judgment of the court below, upon the ground that it did not appear that there would be an issue of fact to try until

the nineteenth day of November, 1873, and after the taking effect of the Code, and no motion nor order was made to try upon written evidence. The record is involved in some obscurity as to whether the appearance term was before the taking effect of the Code, and in view of the fact that the petition was filed on the second day of June, 1873-and it appears, from an amended abstract, that there was a term of court commencing on the sixteenth day of that month-the motion will be overruled. It is urged by the appellee that the original abstract does not purport to contain all the evidence. We think that the certificate of the referee, found on page 30 of the abstract, is a sufficient statement to that effect.

2. We have been somewhat particular in stating the issues. which appear of record, for the reason that counsel for appellant claim that there should be a recovery against the defendants upon grounds other than those presented in the petition. The averments of the petition are that the corporation was duly organized, and that the defendants, as stockholders, are liable to contribution because they requested the plaintiffs to become sureties for the corporation. The articles of incorporation provide that "the private property of the member shall in no case be holden for the liabilities of the company beyond the amount of his subscription." Such a provision may be made in articles of incorporation of this character, and the private property may thus be exempt from liability for corporate debts beyond the amount of the subscription. Code, § 1059.

The plaintiffs do not seek to recover because the defendants are indebted upon their subscription, nor because of any failure to comply with the law providing for the organization of corporations. The sole ground of recovery is that the defendants were stockholders, and requested the plaintiffs to become sureties for the corporation. That this does not create a liability, certainly is apparent. It involves no promise of indemnity, and no undertaking of any kind. kind. It is argued that the liability of these stockholders is the same as the liability of members of a partnership. The rights of the parties are totally different. The individual members of a partnership are jointly and severally liable for the debts of the firm. In a corporation there is no liability of the individual stockholder where the articles of incorporation so provide.

Evidence was introduced that the notes in question were made and executed at certain meetings of the stockholders; and that it was agreed at such meetings that each stockholder

should bear his share of the obligations assumed by those who executed the notes. No record was made of any such agreement, and no distinct and personal promise to indemnify those signing the notes appears to have been made.

This evidence is strongly contradicted by evidence that no such agreement was made, and if it were a question in issue we would be inclined to hold that such agreement is not shown by a preponderance of evidence. But, as we have seen, no such agreement is alleged in the petition. Whether such contract, if pleaded and proved, would create a legal liability, we need not determine.

Affirmed.

H. A. HARTSHORN, Appellee, vs. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILROAD COMPANY, Appellant.

Filed December 11, 1879.

In condemnation proceedings, for right of way of a railroad through a farm, the measure of damages is the damages to the entire farm, and not merely to the governmental sub-division over which such right of way may pass. Certain instructions in regard to the platting and laying out of an addition to a town, bearing upon the question of damages for right of way through such addition, considered, regarded as erroneous, but the errors are without prejudice. The damages for right of way over land is the depreciation in the market value of the land affected by the appropriation, and in determining such depreciation everything resulting from the appropriation may be considered. Where possession is taken of property condemned, appeal taken from the award of the sheriff's jury, and the amount of damages increased, interest should be allowed on the damages found to the date of trial. Damages held not so excessive as to warrant setting aside the verdict.—[ED.

Appeal from Benton circuit court.

The defendant having served upon plaintiff the usual notices for the assessment of plaintiff's damages for right of way over the property of plaintiff described below, the sheriff's jury assessed said damages for right of way over the N. E. of the N. E. of section 9, and S. E. of section 4, township 85, range 14, at $400; and his damages for right of way over Hartshorn addition to the town of Traer, Tama county, Iowa, at $533. The plaintiff served notices of appeal from these assessments. In the circuit court the assessments were united and tried as one cause. The cause was tried by a jury, and a verdict was returned awarding the plaintiff $1,608.50 as damages to the farm, and $898.40 as damages to the addition to the town of Traer. The defendant appeals. J. & S. K. Tracey and C. W. Gardner, for appellant. Hubbard & Clark, for appellee.